1. BASHARAT AHMAD SHAIKH, J.--- An order was issued by the Deputy Administrator of Waqf Properties, Mirpur on 28th January, 1997 whereby, under the directions of the Minister of Auqaf, Azad Government of the State of Jammu and Kashmir, the allotment of Shop No.35 was cancelled from the name of appellant Nawab Khan and was given on lease to Muhammad Nawaz, respondent No.7. Nawab Khan was referred to as a tenant in the aforesaid order. This order was challenged by Nawab Khan by filing a writ petition which was admitted to regular hearing on 10th March, 1997 and a status quo order was also issued. The writ petition has now been dismissed by the High Court on the short ground that the shop in dispute was given on lease to Nawab Khan for a period of two years which had not been extended with the result that he was no longer a lessee. It was also pointed out that Nawab Khan had also not made payment of monthly rent due from him. Nawab Khan has filed this appeal, With leave of the Court. Some of the facts which are related for deciding the case are as follows. Shop No.35 was given on lease to the appellant by the Chief Administrator on a monthly rent of Rs.350 and an advance of Rs.4,200 was also received from him. A single order was passed by Chief Administrator Auqaf on 14th December, 1991 granting lease of thirty-two shops to different persons. The shops are situated in a market adjacent to Jamia Masjid District Courts, Mirpur. The appellant was put in possession on 9th June, 1992. It was mentioned in the order of the Chief Administrator issued on 14th December, 1991 that the lease was for one year. A written deed, Exh.D.B., was also executed by the appellant in which it was stated that the lease was initially for two years but it may be extended by the Department for one year by enhancing rent up to ten per cent. It was also provided in the lease deed that one month notice will be given for vacation of the shop. The lease deed was not formally extended but it is an accepted position that payments made by the appellant from time to time were accepted under proper receipts. The last receipt was issued on 27th January, 1997. It was a payment for the months of April, May and June, 1995. The order of cancellation was passed one day after the last deposit on 28 January, 1997. It is also admitted fact that the security amount of Rs.4,200 was available with the department.
2. The Azad Jammu and Kashmir Waqf Properties (Administration) Rules, 1961 authorise the Chief Administrator to lease out Waqf Property -and it is provided in Rule 7 that a lease shall not exceed two years and if the tenant fails to pay rent for two months, he shall be liable for ejectment on one week notice. It follows that non-payment of rent for two months is a valid ground for ejectment but it is subject to condition that one week's notice shall have to be given to the lessee.
3. It was argued by the learned counsel for the appellant, Mr. Liaquat Ali Khan, that the Minister Auqaf does not figure anywhere in the Waqf Properties Act and the rules made thereunder. It was argued that the judgment of the High Court is based on misconception because it was factually incorrect that the lease period had expired. It was submitted by Mr. Liaquat Ali Khan that the tenancy was to come to an end on 9th June, 1994 but the Chief Administrator of the Department did not give any notice for terminating the lease. On the other hand, the Department accepted rent up to 30th of June, 1995 which means that the Department had practically extended the lease period. It was argued that notices, Annexure "D" to Annexure "I" were issued by the Deputy Administrator during the period between 20th January, 1994 and 1996 (date not legible) in which it was stated that arrears of rent may be deposited otherwise the higher authorities will be moved for ejectment.
4. Another argument raised by the learned counsel was that one week notice required by Rule 7 was not given by the concerned authorities.
5. It was argued by Ch. Shah Wali, the learned counsel for the Chief Administrator and other functionaries, that the appellant was given notices, Annexure "D" to Annexure "I" which are available in file. These notices were respectively issued on 20th January, 1994, 13th November, 1994, 24th July, 1995, 3rd October, 1995 and on an unspecified date in 1996. In each of the notices it was stated that in case of default the higher authorities will be moved for cancellation of lease and action will also be taken under the Land Revenue Act to recover the outstanding amount as arrears of land revenue. The latest notice was issued in the year 1996 (the date is not legible). According to Annexures "PE/1" to "PE/6" the appellant deposited the following amounts on the dates indicated below:----- (1)On4-1-1997Rs.2,970 (2)On9-1-1997Rs.2,475 (3)On19-1-1997Rs.1,633 (4)On20-1-1997Rs.1,633 (5)On22-1-1997Rs.1,633 (6)On27-1-1997Rs.1,633 TotalRs 11,977 It is clear that in the month of January within a span of twenty-three days the appellant made six payments amounting to Rs.11,977 but all of a sudden within twenty-four hours after the last payment the cancellation order was issued. The impugned order was as follows: "ORDER As directed by the Minister Auqaf, Azad Government of the State of Jammu and Kashmir, Shop No.35, is cancelled from the name of Nawab Khan son of Abdul Sattar Khan Afghani Pathan tenant and is transferred in the name of Muhammad Nawaz son of Muhammad Alain resident of Bhurkey Tehsil Mirpur under usual terms and conditions." (Translated).
6. It is clear from the foregoing that the impugned order does not state that it was being passed for non-payment of rent. In fact it does not state that the appellant had defaulted. The order clearlyth shows that the Minister cancelled the lease in favour of the appellant and awarded the lease to respondent No.7. After having accepted the rent for the period when lease deed had expired long ago the lease period stood' legally extended. Action against the tenant could be taken only on the ground that he had failed to pay rent for two months for which one week notice was to be given as is provided in Rule 7 of .The Azad Jammu and Kashmir Waqf Properties (Administration) Rules, 1961.
7. The record shows that the Department at no stage took any action for ejectment of the appellant and they were only asking him to make payment of the arrears of rent. They threatened him in writing that ejectment proceedings will be started if he failed to do so gut such proceedings were never initiated. The Minister Auqaf is not authorised under the Act to cancel the lease. In fact he was not even authorised to order the ejectment of an unauthorised person. The appellant was a defaulter and even if his lease deed expired action could only be taken by the competent Authority of the Department which at no, stage wanted the appellant's ejectment. It only wanted to recover arrears of rent.
8. During arguments before this Court Ch. Shah Wali and Ch. Muhammad Afzal were allowed to raise a point for the first time that a writ petition in the present case was in any case not maintainable as it has been filed to enforce a contractual liability. The case was adjourned to enable Mr. Liaquat Ali Khan, the learned counsel for the appellant, to prepare his reply on this point.
9. Mr. Liaquat Ali Khan countered the, objection by submitting that the principle pressed by the learned counsel for. The respondents was not applicable because apart from violation of the contract between the parties, violation of Rule 7 of the Azad Jammu and Kashmir Waqf Properties (Administration) Rules, 1961 was committed, therefore, a writ was maintainable. Rule 7 is as follows:- - "7 Lease of Waqf Properties.--- Unless otherwise specifically provided in etc the scheme settled under Rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme:---(a) Where the lease relates to land:---(i) The lease shall be in writing;
(ii) the period of lease shall not exceed three years; (i.e) as far as possible the lease shall be made, through auction, in favour of the highest bidder, auction being held on the spot or at such other place. Close to it as tray be easily accessible to the attending bidders;
(iv) the successful bidder shall deposit one year's rent in advance at the time of auction and this amount shall be adjusted towards the rent of the final year; (b)Where the lease relates to a house or shop:----
(i) the lease shall be in writing;
(ii) the period of lease shall not exceed two years; (i.e) the rent reserved shall be at the best available market rate;
(iv) other things being equal, preference shall be given to the old lessee whose lease is due to expire and who agrees to the renewal thereof;
(v) the lessee shall deposit two months rent in advance and the same shall be adjusted towards the rent of the last two months of the period of lease;
(vi) if the tenant fails to pay rent for two months, he shall be liable to ejectment on one week's notice."
10. Mr. Liaquat, Ali Khan relied on a judgment of the Supreme Court of Pakistan reported as Muhammad Ashraf Ali v. Muhammad Naseer and 2 others 1986 SCM R 1096 in which it was held that where the question of jurisdiction and competency of functionaries of Cooperative Fund was involved, the jurisdiction of High Court to deal with such matters could not be altogether ruled out on the ground that dispute between the parties arose out of a contract. The learned counsel also relied on two recent judgments of Lahore High Court. In Inpak Tech. Industries (Pvt.) Ltd. v.
11. Government of Punjab 1998 M LD 1383 the petitioner had been given a contract for collection of District Council Tax. He filed a writ petition to challenge the action of the Provincial Government in exempting the certain goods from the levy of the tax. Objection that the writ petition was not maintainable because it was based on a contract was repelled on the ground that although the petitioner was working under a contract but he had challenged in the writ petition the authority of the Provincial Government to pass an exemption order. The objection was repelled.
12. Violation of Rule 7 has been proved. It is also clear that the Minister Auqaf was not an authority under the Azad Jammu and Kashmir Waqf Properties Act and he violated the said Act and the rules made thereunder bypassing the impugned order. Therefore, it is a clear case of violation of law apart from violation of contract. Thus, our view is that a writ was maintainable.
13. As discussed above the judgment of the High Court proceeded on a wrong assumption that the lease deed had expired. It is also our view that the appellant had been given a lease of Waqf Property which was partly governed by statutory ,rules and it is only the Chief Administrator of Auqaf Department who could take action against the appellant for his ejectment. The notices issued by the Department show that they accepted him as a tenant and did not want his ejectment if he was to deposit the arrears of rent. Therefore, the concerned functionaries will be free to proceed in accordance with law if so advised.
14. It was argued by Ch. Muhammad Afzal, the learned counsel for' respondent No.7, that the appellant was not a State subject and, therefore, he did not enjoy any Fundamental Right under the Azad Jammu and Kashmir Interim Constitution Act. It is true that some of the Fundamental Rights are only enforceable by State subjects but for filing of writ petition no such distinction is imposed by the Azad Jammu and Kashmir Interim Constitution Act., whether the non-State subjects can be given a property on lease was to be seen and decided initially by the concerned Department but no such decision has been taken.
15. We, therefore, set aside the order passed by the High Court, accept appeal filed by the appellant and declare that the impugned order, dated 29th April, 1998 was passed without lawful authority and is of no legal effect. It is ordered that the appellant will be put back in possession if he deposits the arrears of rent for the period he was in possession within fifteen days from today.